Judge Richard Henderson found enough evidence at a preliminary hearing last Wednesday to bind Xavier Francis over for trial for the theft of five rifles from the Tony and Kerry Sanchez residence on Mountain View Road above Boonville.
Francis's fingerprints were found at the scene of the crime, but he told Anderson Valley’s resident deputy, Craig Walker, that he’d never been to the Sanchez home in his life.
Mr. Francis’s case seems straightforward enough, but the forensics man who processed Francis's fingerprints was a stand-in for the usual forensic technician at the Department of Justice, meaning when the Deputy Public Defender assigned to the Francis case walked into court he was hit with a series of unexpected names and documents he hadn't seen.
Deputy PD Andrew Wiggins, a sharp young blade who recently relocated to Ukiah from Tucson, objected to being handed the evidence against Francis just as the prelim was getting underway. He asked for time to look it all over before he had to defend Francis against it. (Wiggins' father, incidentally, is a prominent Tucson defense attorney.)
The DA himself, David Eyster, is prosecuting the case. The DA is well aware of potential weaknesses in the evidence but, of course, wanted to press forward with decisive celerity. This being a case where the defendant, who was very probably the culprit — or one of several culprits, as it happens — was seeking to get off on the “technicality” of just who at the Department of Justice processed the prints. Judge Henderson seemed to agree.
“The motion to continue is denied,” Judge Henderson informed defense attorney Wiggins, and DA Eyster called his first witness, Deputy Troy Furman, an investigator with the Sheriff’s office.
On the morning of December 20th, 2010 Deputy Furman had gone to the Sanchez place with Bobby Wallace, who was feeding the cat, watering the houseplants, and generally looking after the place in the absence of the owners.
“What did you find?”
“Broken glass. The sliding glass door in the back had been shattered with a rock a little smaller than a football, and the residence appeared to have been burglarized. Drawers and cabinets were left opened, items strewn around, and Mr. Wallace showed me an empty gun cabinet.”
“Anything else?”
“Yes. I saw what looked like latent fingerprints on a window. So we dusted for prints and submitted them to Martin Collins.”
“Who is Martin Collins?”
“He works for the Department of Justice crime lab.”
“Objection. Mr. Collins was not mentioned to defense until just a few minutes ago, your honor.”
It may seem like a foregone conclusion that the long-established semi-science of fingerprinting would be a simple thing for any DOJ technician. But like everything else in modern life it’s more complicated than it should be. In fact, the DOJ is so overwhelmed with fingerprint analysis requests that it generally takes over a year to get results back for anything but a homicide. So the defense felt they had good cause to question this Mr. Collins’ credentials.
Judge Henderson disagreed.
“Overruled,” he said.
Inspector Furman continued.
“We submitted two fingerprints and one thumbprint, three in all.”
“Did Collins confirm who the prints belong to?”
“Yes. He confirmed they belonged to Xavier Francis.”
“Nothing further.”
Slam dunk?
Not quite.
Wiggins was caught off guard; he was scrambling to read the fingerprint documents and at the same time listen to the testimony. But he’s young, energetic and agile and found a couple of things the prosecution would rather he hadn’t noticed. For one thing, the prints were lifted from glass that was more than 10 feet behind the house. Moreover, nothing in or around the break-in point had been dusted for prints, nothing inside the house had been dusted and any mention of a palm print — which was in the crime report — had been glossed over by prosecution. And, at the bottom of the report, there was a note where this Mr. Collins had noted that the ridges of the prints were smudged to the point that made the results inconclusive.
Defense attorney Wiggins asked, “When the fingerprints were found — was this at the point of entry?”
“No.”
“Did you attempt to lift any fingerprints from that area, at all?”
“We did not, no.”
“What other places did you dust?”
“None.”
“Well, did you at least dust the gun cabinet?”
“We did not, no.”
“And when did you speak to this Collins individual?”
“A 1:45.”
“Today?”
“Yes.”
“And did he immediately remember the case?”
“No. I reminded him of it.”
“Okay. Did he say he signed off on it?”
“No, he didn’t say he’d signed off on it per se.”
“Do you have a copy of the report?”
“I do.”
Mr. Wiggins had the report entered as Exhibit A.
“Now, Inspector Furman, if you will look at your copy of the report, on page seven…”
“Yes…”
“See that paragraph where it says two fingerprints, one thumbprint, and a palmprint — do you see the paragraph I’m referring to?”
“I do.”
“Now if I’m not mistaken, that palmprint is not identified, is it?”
“It is not, no.”
“Also, there is the final paragraph stating that the prints lack sufficient ridge detail to be identified conclusively. So you can’t tell us which prints he’s talking about in that paragraph, can you?”
“No.”
“Well, can you tell if the print has been there a month?”
“No.”
“Can you tell if it has been there three months?”
“No.”
“So you have no idea when the print was left?”
“No.”
“Thank you very much.”
DA Eyster said, “In reference to the palmprint, the report says they just didn’t have one to compare it to, does it not?”
“Yes. If we had one we could compare it.”
When a person gets fingerprinted the officers do not generally take the palmprints; hence, nothing to compare it to.
“But they found two fingerprints and one thumb print, and they belonged to Xavier Francis, did they not?”
“Yes.”
“So, just to clarify — may I approach, your honor? — I’m showing you the report defense counsel mentioned: Does that final paragraph about the lack of sufficient ridge detail refer to the finger and thumbprints or to the palmprint?”
“The palmprint, yes.”
“Now, you spoke to Tony Sanchez about the missing firearms. Did he give you a list?”
“Yes. There was a Benelli shotgun; a Ruger 30.06 rifle; a blue-steel Marlin .44 rifle; a stainless-steel Marlin .22 rifle with a scope; and a Ruger 25.06 rifle.”
“Also, these fingerprints were found right by where someone entered the home, correct?”
“Well, it’s kinda hard to say…”
On that inconclusive note, Inspector Furman was excused and resident deputy Craig Walker of the Anderson Valley was called to testify.
Deputy Walker said he got involved in the case in June of 2011. He was informed that the fingerprints of Xavier Francis were found at the scene of a firearms burglary in his jurisdiction.
Did you attempt to make contact with Mr. Francis?”
“I did.”
“In person?”
“By phone, first. I called him on June 2nd, and talked to him in person on June 5th. When I called him on June 2nd and asked him to talk, he wouldn’t meet with me.”
“On June 5th did you locate and speak to him in person?”
“In Boonville, yes. He was a passenger in a car; I approached and contacted him there.”
“Did you ask about a burglary?”
“I did. I asked if he knew anything about it and he said he did not.”
“Did you ask if he’d ever been up to the Sanchez place?”
“Yes.”
“What did he say?”
“He said he’d never been there. Ever.”
“Nothing further.”
Mr. Wiggins began his cross-examination of deputy Walker.
“So, he [Francis] said he wouldn’t talk to you the first time?”
“He said he’d call me.”
“You said he refused to talk to you!”
“He wouldn’t talk on the phone…”
“Well, didn’t that indicate that he didn’t want to talk to you?”
“He said he didn’t want to talk on the phone.”
“Oh. Did that indicate that he wanted to talk to you in person?”
“I don’t know.”
“Would you have respected his wish if he said he didn’t want to talk to you in person?”
“Objection. Calls for speculation.”
“I’ll allow it,” Judge Henderson said.
Deputy Walker seemed a little nervous. Except for a recent slam-dunk DUI case he hasn’t been in the hot seat for awhile.
It’s easy to forget what a pain in the neck a zealous young defense attorney can be. And to be sure, something else was at play here, apart from the usual Courthouse establishment's hostility to an aggressive defense attorney.
Consider:
Nobody, if they don’t want to, has to talk to a cop. That’s what the Fifth Amendment is all about. That’s why we have an absolute right to remain silent, and we have a right to have a lawyer present for any questioning.
Consider how Miranda, and its accompanying Supreme Court decisions, on paper, is a noble gesture which declares that constitutional rights extend into the privacy of a friend’s car and ensure that no criminal suspect has to relinquish his rights to a cop.
Consider, too, that such a blanket guarantee of individual rights would, while making Mendoland’s many virulent Libertarians overjoyed, effectively end the use of interrogation as an investigative tool for law enforcement.
Trapped in this contradiction, a cop does his job in the only possible way he can. He carefully follows the letter of the law — close enough so as not to jeopardize his case, at least; and just as carefully, he ignores the spirit and intent of the law.
In the words of The Wire's David Simon, “Those who believe that a straightforward conversation between a cop and a criminal — devoid of any treachery — is going to solve a crime are somewhere beyond naïve.”
Deputy Walker chuckled nervously and replied, “Yes.” I.e., he would have respected the wish of a likely gun thief not to talk to him.
“Well, he said he did not want to talk to you on the phone! Did you have your uniform on — were you carrying a gun — were you in a marked car?”
“Yes.”
“And you followed him to a gas station; then you approached him in the car and contacted him when you knew he didn’t want to talk to you!”
Eyster: “Objection. This is becoming argumentative, your honor.”
“Sustained.”
“You decided to pursue him anyway — “
Judge Henderson: “Counsel…”
Wiggins: “…even though you knew he didn’t want to talk to you?”
Judge Henderson: “The objection was sustained, counsel.”
Mr. Wiggins slammed his pen down on his legal pad in disgusted defeat.
DA Eyster said, “So you specifically asked the defendant if he’d been to the residence?”
“I did. He told me he’d never been there. Ever.”
Mr. Wiggins made a valid point that the fingerprints could have been there for three months or more, but in light of the statement by Francis that he’d never — ever — been in the Sanchez home, it was what lawyers call “moot.”
Wiggins also said Deputy Walker had “harassed” his client.
(In one “interview” with Francis and a car load of his friends, the defendant and friends became so belligerent and threatening that Deputy Walker had had to call for back-up.
In the end Eyster admitted that the evidence was “circumstantial, but still sufficient for the purposes of a prelim.”
Judge Henderson agreed and bound the defendant over for trial.
Chances are good that the case will settle before it goes to trial. And even if it doesn’t, it’s highly unlikely Xavier Francis will go to prison or even to jail, since the local jail will soon fill up with homeboys being returned from the state pen to alleviate the overcrowded conditions there.
Gossip around the Anderson Valley is that Francis was one of three or four youths, all but one possessing lengthy juvenile records, who broke into the Sanchez home to steal the guns, none of which have been recovered.
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